In the Matter of the Personal Restraint Petition of Richard Garrett Turay

Summary

The Washington Supreme Court dismissed Richard Garrett Turay’s fourth personal restraint petition as an abuse of the writ. The court held that Turay’s claim that the State was required to plead and prove a recent overt act was available during his earlier petitions and was not excused by subsequent decisions. The opinion discusses successive personal restraint petitions, current dangerousness in sexually violent predator commitments, and exceptions to the abuse-of-the-writ doctrine.

Holdings

1. Before dismissing a personal restraint petition as an abuse of the writ, the State must allege abuse, identify the petitioner's prior personal restraint petitions, and identify claims appearing for the first time.
2. A second or subsequent personal restraint petition raising a new issue for the first time will not be considered when the issue was available but not raised in an earlier petition and its omission constitutes inexcusable neglect.
3. Turay's claim that the State had to plead and prove a recent overt act was available before his earlier petitions because In re Personal Restraint of Young had already established the governing due-process rule.
4. The failure to raise a claim in an earlier personal restraint petition may be excused under state law for newly discovered evidence or an intervening change in case law, and potentially in other extraordinary circumstances, but Turay showed no applicable exception.
5. Turay's personal restraint petition must be dismissed as an abuse of the writ because the recent-overt-act claim was previously available and he failed to show that he was not presently dangerous or otherwise establish an exception to the procedural bar.

Questions Presented

1. Whether Turay's successive personal restraint petition was an abuse of the writ because it raised a claim that was available but not raised in earlier petitions.
2. Whether later decisions concerning the recent-overt-act requirement constituted an intervening change in law excusing the failure to raise the claim earlier.
3. Whether the absence of a recent overt act, without a showing that Turay was not presently dangerous, required consideration of the merits despite the procedural bar.
4. Whether an actual-innocence or comparable fundamental-miscarriage-of-justice exception applied to a civil sexually violent predator commitment.

Disposition

dismissed